Larson v. Olympic Fin. Co. (In re Larson), 21 B.R. 264 (Bankr.D.Utah)
PUBLISHED
Chapter 7 debtor sought to avoid three prepetition garnishments by creditor as preferences under 11 U.S.C. § 547(b) and 11 U.S.C. § 522(h). Creditor denied that debtor was insolvent at the time of the transfers, claiming that he had regular employment and a high income. Debtor stated that his filings established his insolvency when the transfers occurred, and relied on the § 547(f) presumption of insolvency during the 90-day period prior to filing of the petition. The court determined that creditor had failed to meet its burden to rebut the presumption and, therefore, debtor was insolvent during the 90-day period. The only remaining issues were whether the transfers occurred in the 90-day period, and whether they allowed creditor to recover more than it would have received in a distribution under the Code. The court noted that garnishment proceedings under Utah law involve several steps, at least two of which would be considered "transfers" under 11 U.S.C. § 101(40). However, § 547(e)(3) provides that a transfer does not occur until debtor has acquired rights in the transferred property. Therefore, on the day the writ of garnishment was served on debtor's employer, a transfer of all wages debtor had already earned took place on that date, and subsequent wages within the same pay period were "transferred" to creditor on each day they were earned by debtor. Any garnishments of wages earned within the 90-day period were therefore avoidable.